Defending of a county court claim

nosferatu1001

Can you please, please take the time to read, read, READ the newbies thread?
Every single quesiton you have asked so far is answered in there
YES you are afraid, but you will be more confident and less afraid by your *own work* and own research. 

D_P_Dance

This is a complex matter, but it is not rocket science.  In order to avoid payment you must  do a lot of research, the answer to every question you have asked is answered on the internet or  this or other parking forums, but it is up to you to look for it.  Please do so.  

brokebas12

KeithP said:

Which bit didn't you understand?

KeithP - Apologies, I do understand. The claim form wording was misleading using the words 'This will make it difficult for you to get credit'
AoS and SAR request done.
Shall I proceed with emailing DCBL informing them that a SAR has been sent to their client.

nosferatu1001

No, the claim form wording is not misleading. It is utterly and completely accurate.
No, no need to send anything to DCBL. They wont "do" anything, it will achieve nothing. 
What you do is write your defence. 

D_P_Dance

There was nothing misleading in the claim form surely, you need to keep reading it until the penny drops.  

Redx

It is definitely not misleading , it is totally accurate , which is why you pay any CCJ within the 30 day window to prevent it affecting your credit rating , it's a 30 day reprieve from sanctions in order to allow you to clear the debt with no repercussions

You pay promptly , no future issues

You fail to pay within the reprieve window , or fail to pay at all , only then is your credit affected

Now get on with your defence , concentrate on that

brokebas12

So this my attempt of the defence.

Admittedly most of this copied from various sources but it is based on the defence from the 2020 template for parking claims from Coupon-Mad and have found it really helpful. I am incredibly grateful for finding it and all the great knowledge that I have found within this forum.

Defence is below, there are some points in bold under some of the paragraphs as i was confused whether they were relevant or if I was going along the right lines, I would really appreciate some pointers on these (also any rookie errors!)

Thanks a lot 

IN THE COUNTY COURT

Claim No.: xxxxxxxx 

Between

 ONE PARKING SOLUTION LIMITED(Claimant)

-and-  

XXXXXX (Defendant)

DEFENCE

1.      The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that the driver of the vehicle entered into any contractual agreement, whether express, implied, or by conduct, to pay a ‘parking charge’ to the Claimant.

2.      In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £XX. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case. 

3.      The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against Schedule 2 of the Consumer Rights Act 2015 (‘the CRA’), where s71(2) creates a duty on the Court to consider the fairness of a consumer contract.  The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair.

4.      Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of costs. The sum exceeds the maximum amount which can be recovered from a registered keeper, as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’).  It is worth noting that in the Beavis case where the driver was known, the Supreme Court considered and referred more than once to the POFA.

5.      The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute. It is submitted the Claimant has failed to comply and that the Claimant is well aware of their artificially inflated claim, as pleaded, constitutes double recovery of costs.

6.      The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £80. The claim includes an additional £(subject to para 1), for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

7.      Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019.  Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (Appendix A) and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (Appendix B ).

8.      Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made. 

9.      The Judge found that the claims - both trying to claim £160, with some ten or more similar cases stayed - represented an abuse of process that ‘tainted’ each claim.  It was held to be not in the public interest for a court to let such claims proceed and merely disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage.  That Judgment is appended (Appendix C).

10.   The CCBC and/or the allocated Court Judge is invited to read the Appendices at the earliest opportunity.  The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided.  The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

11.   Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''  

12.   Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of the business model and are already counted within the parking charge itself.

13.   According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

14.   The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019.  Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute.  In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''  

15.   In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process. (Didn’t get a letter before claim – is this still relevant to me? Or can it be re-worded to become relevant?)

16.   The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges that are penal or unconscionable in their construction.  The Supreme Court held at [14] ‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.’’  And at [99] ‘‘the penalty rule is plainly engaged.’’

17.   Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings set a high bar that other claims fail to reach.  Unusually for this industry, it is worth noting that ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out.

18.    This Claimant has failed to plead their case, or to set out their terms or construct their contractual charges in the same way as in Beavis and the penalty rule remains firmly engaged.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish drivers nor to present a motorist with concealed pitfalls or traps, nor to claim an unconscionable total sum.

19.   The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was entered into with the Claimant, whether express, implied, or by conduct. It is also denied that the driver breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct as no enforceable contract offered at the time by claimant, no cause for action can have arisen.

20.   The Claimant also stated in the Particulars of Claim that ‘The driver of agreed to pay the parking charge within 28 days but did not’. However, the claimant has failed to provide evidence of that agreement and failed to identify who the driver that it is referring to.

21.   The Beavis case is fully distinguished and a more relevant list of binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 and (ii) Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2, both leading examples of the ‘red hand’ rule - i.e. that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.

22.    Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or the necessary landowner authorisation to issue PCNs under these circumstances and to pursue keepers by means of civil litigation. 

It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, other terms (or instructions to cancel charges due to a surge of complaints) and there is no evidence that the freeholder authorises this particular Claimant ONE PARKING SOLUTION LIMITED.  Any purported landowner 'contract' which fails to properly identify the two contracting parties and/or which is in any way redacted (including the signatories, which in some parking claims have been revealed not to be that of the landowner) should be disregarded, along with any undated and/or unsubstantiated records, documents, boundary maps or aerial views, or photos which are capable of manipulation.

23.   For any or all of the reasons stated above, the Court is invited to dismiss this claim.

24.    In the matter of costs.  If the claim is not struck out, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) the Court to reserve, assess and award the Defendant’s Summary Costs Assessment, to be filed and served at Witness Statement stage in anticipation of a typical late Notice of Discontinuance (‘NoD’) from this Claimant.

25.   At NoD stage, or at a hearing if the case proceeds that far, the Court will be taken to facts to support a finding of wholly unreasonable conduct by this Claimant.  Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant notes that LiP costs are not necessarily capped at £19 ph.  The Defendant will ask for a fairly assessed rate for the hours spent on this case, referencing Spencer & anor v Paul Jones Financial Services Ltd.

26.   In summary, the Claimant's Particulars disclose no legal basis for the sum claimed. This Claimant knew, or should have known, that an exaggerated ‘parking charge’ claim where the alleged ‘debt’ exceeds the £100 ATA CoP ceiling is disallowed under the CPRs, the Beavis case, the POFA and the CRA,  The Judge in the instant case is taken to the Appendices, demonstrating that several court areas continue to summarily strike out private parking cases that include an extravagant and unlawful costs sum.

Statement of Truth

I believe that the facts stated in this Defence are true.

 

Defendant’s signature:  …………………………….…………………………….               

Defendant’s name:       …………………………….…………………………….

Date:                              …………………………….……………………………

Coupon-mad

This looks like the template defence but you've added old pointless stuff like Ladak v Locums.  You are not meant to change the template like that.  Only change the red bits - i.e. add in your own details, like where the car park is and what the driver was doing and why they consiered themselves authorised.

Truth be told the defendant is a student who gained a parking ticket from the place of where they study at their car park,

So your case is like @basher52 's case where I wrote a defence last year, and your nearest court is Brighton? 

In his case the PCN was £80 (albeit they had more than one and the keeper was not the driver in that case) and with the false £60 added, the sum for point #2 is £140 if the PCN and sign said £80.

brokebas12

Truth be told the defendant is a student who gained a parking ticket from the place of where they study at their car park,

So your case is like @basher52 's case where I wrote a defence last year, and your nearest court is Brighton? 

Yes, my case is similar. Based in west sussex and i believe my nearest court is chichetser.

Thanks for the comments regarding the defence and template, I will make some alterations and re-post

In his case the PCN was £80 (albeit they had more than one and the keeper was not the driver in that case) and with the false £60 added, the sum for point #2 is £140 if the PCN and sign said £80.
- Sign said £80 yes. The extras above the £140 must be interest then?

Coupon-mad

The extras above the £140 must be interest then?

A few quid, yes.  The charge was £80.

£60 has been falsely added and they pretend this is 'opertional/debt collection costs'.
£12 has probably been added as a fake trace/soft search cost 
Both of the above MUST already be in the £80 parking charge, as the Beavis case says 3 times.